England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 November 2002

Mr Justice GROSS :

INTRODUCTION

1. At about 04.30 on 23^rd April, 2001, the Claimants' motor fishing vessel, the "SAINT JACQUES II" collided with the First Defendants' vessel, the motor tanker "GUDERMES", in the English Channel about 13 miles North-East of Dover ("the collision"). On the 26^th April, 2001, the First Defendants commenced an action, 2001 Folio No. 465, claiming damages in respect of damage to their ship and to the cargo of which they had been bailees, arising out of the collision and allegedly caused by the negligence and/or breach of duty of the Claimants, their servants or agents ("the liability action"). It would appear that the damages claimed in the liability action from the present Claimants will be of the order of some US$700,000. For their part, on the 10^th August, 2001, the Claimants commenced this Limitation Claim, seeking a decree limiting any liability they might have for damages arising out of the collision, under the Merchant Shipping Act 1995 ("the Act"); on the 8^th June, 2001, the Claimants constituted a Limitation Fund, in an amount of (about) £76,000.
2. The relevant law as to limitation is contained in The Convention on Limitation of Liability for Maritime Claims 1976 ("the Convention"), as enacted in Schedule 7 to the Act. There is no doubt that the Claimants and the claim come, respectively, within Arts. 1 and 2 of the Convention. The First Defendants, however, oppose the Claimants' entitlement to limit their liability; the Second and Third Defendants, the owners of the cargo carried on the "GUDERMES" have agreed to be bound by the result of the challenge thus mounted by the First Defendants. The dispute as to the Claimants' entitlement to limit their liability turns on Art. 4 of the Convention, which provides as follows:

" Conduct barring limitation

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result."

As there is no suggestion that the collision was caused intentionally, the First Defendants' challenge to the Claimants' right to limit rests on the allegation that the collision was caused by the "personal act or omission" of the Claimants (or one of them), committed "recklessly and with knowledge that such loss would probably result".

3. By an Application Notice dated 2^nd January, 2002, the Claimants applied summarily for judgment and a limitation decree; they sought an order that the First Defendants' Defence be struck out under CPR Part 3.4, alternatively, summary judgment under CPR Part 24.2; essentially, the grounds of the application are that the First Defendants have no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
4. In a careful judgment given on the 26^th February, 2002 (and reflected in an order of the same date), Master Miller, the Admiralty Registrar, dismissed the Claimants' application. The upshot of the Registrar's ruling was that the Claimants' limitation claim must go to trial. The Claimants now appeal to this Court from that decision of the Registrar, permission having been given by David Steel,J., on the 22^nd March, 2002.

THE FACTS

5. For the purposes of the present application and appeal, the facts may be shortly summarised. Before doing so, I record that I allowed an application by the Claimants, that they be permitted to adduce fresh evidence on the hearing of the appeal, namely the Report of the Marine Accident Investigation Branch ("the MAIB") into the collision, dated February, 2002 ("the Report"). In short, the Claimants submitted that the Report contained admissible evidence which demonstrated that in one respect (to which I shall come) the Registrar had proceeded on a mistaken factual foundation; the final version of the Report had not been published until after the hearing before the Registrar. The First Defendants opposed this application, in essence, on the ground that the underlying evidence had been available prior to the hearing before the Registrar and the Claimants had taken their stand on proceeding and seeking summary judgment without such evidence. I have some sympathy for the First Defendants' stance; however, as it seemed to me, it would be most undesirable for this matter possibly to go to trial on an allegedly mistaken factual basis. In all the circumstances, taking into account the overriding objective and the matters discussed in Civil Procedure, Vol. 1, Autumn 2002, at paras. 52.11.6 – 7, it seemed to me appropriate and just to permit the Claimants to adduce the Report in evidence on the hearing of this appeal. Such prejudice as the First Defendants have sustained (if any) can be addressed when costs come to be considered.
6. Reverting to the facts (including those contained in the Report), it appears that the "GUDERMES" was on a voyage from Tallinn in Estonia, to Conakry in West Africa, laden with a cargo of some 26,000 mt of fuel oil. She was proceeding in the South West Traffic Lane of the Dover Straits Traffic Separation Scheme and was, at the material time, steering a course of 230° (T). The "SAINT JACQUES II" had sailed from Boulogne-Sur-Mer and was making good a course of 012°, on passage to the Falls Bank fishing grounds; the course of the "SAINT JACQUES II" involved her crossing the South West Traffic Lane on a heading against the flow of traffic; she was, therefore, navigating as a "rogue" vessel, ie., a vessel contravening Rule 10 of the Convention on the International Regulations for Preventing Collisions at Sea 1972 as amended ("the Collision Regulations"). Though motoring analogies must be approached with care, the navigation of the "SAINT JACQUES II" in the busy waters of the Channel, represents the nautical equivalent of a motorist proceeding the wrong way along a motorway.
7. As to the collision, suffice to say, for present purposes, that it occurred after the two vessels had been on a steady bearing relative to each other for about 16 minutes. The Channel Navigation Information Service ("CNIS") had warned all ships in the area via VHF Channel 16 radio broadcasts that a vessel (later identified as the "SAINT JACQUES II") was contravening Rule 10 of the Collision Regulations.
8. It has already been noted that the Claimants are the owners of the "SAINT JACQUES II". The First Claimant was, in addition, her skipper. He was on board on the night in question. It was the First Claimant who determined the course to be steered by the "SAINT JACQUES II" after she left Boulogne-Sur-Mer. Some time after the departure, the First Claimant apparently left the wheelhouse and went below. By this time, with one exception, the remaining crew were resting in their quarters. The single exception, left alone in the wheelhouse, was a 17 year old deckhand. He was not qualified as a skipper but held some certification and had been working on board for some two years; he had been keeping watches alone in the wheelhouse for about the previous six months. He did not speak English. It is said by the First Claimant that he had instructed the deckhand verbally to follow the track on the video plotter and to call him if any radar echoes entered within the VRM (which had been set to 1 mile) or were likely to pose a problem; the First Claimant had previously made all watchkeeping crew aware of the need to call him if they were in the slightest doubt. The First Claimant had gone to sleep; he had not been in the wheelhouse at the time of the collision; he was then below and was awoken by the collision.
9. As to route selection, the Report says this:

" The skipper and deckhand on SAINT JACQUES II were aware that their track through the south-west bound lane of the Dover Strait TSS contravened the Collision Regulations. The skipper, however, was prepared to do this in order to arrive at the fishing grounds before other vessels which had left Boulogne at about the same time."

On the evidence available to me, it had been the practice of the "SAINT JACQUES II" to navigate in this fashion; the First Defendants have pleaded five specific previous instances of such "rogue" navigation, supported by underlying rogue ship reports, produced by the Dover Maritime Rescue and Coordination Centre which had tracked the "SAINT JACQUES II" on those occasions.

10. In summary, on the facts on which I must proceed: (1) the "SAINT JACQUES II" was navigating as a "rogue" vessel in flagrant breach of the Collision Regulations; (2) she was doing so with the First Claimant on board; (3) it was the First Claimant who had set her course for the purpose of reaching the fishing grounds before his competition; (4) it had been the practice of the "SAINT JACQUES II" to navigate in this fashion.
11. Against this background, the Claimants' concession (as recorded in their skeleton argument), for the purpose of their application for summary judgment and this appeal, that "The First Claimant navigated across the TSS in breach of Rule 10 and was reckless in doing so", was inevitable.

THE JUDGMENT OF THE REGISTRAR

12. The Registrar began by reviewing the cases of the parties and summarising the witness statements from each party's solicitor, noting that the Claimants (then) did not intend to rely on any witness statements from anyone involved in the incident and asserted that they had no disclosure to give. He considered the law on the Convention and directed himself as to the relevant test under CPR Part 24. The Registrar concluded that the Claimants were not entitled to summary judgment; essentially, this conclusion was based on the navigation of the "SAINT JACQUES II" in the final minutes before the collision, as appears from the following passages in the Registrar's judgment:

" 44. …. in this case it seems to me that the immediacy of the Owners of the fishing vessel in terms of the activity complained of arguably presents quite a different picture to that which was dealt with in the "LEERORT" [I interpose, a decision of the Court of Appeal to which I shall come] and … it is arguable that their [ie., the Owners'] knowledge was sufficiently polarised to satisfy the test in the "LEERORT". …. for the moment … it is perfectly arguable that their conduct took place over a period of time when it is certainly possible, that they formed, they became aware and appreciated that they were going to collide with the very vessel that they collided with, and that they were reckless in carrying on without taking any, arguably any, avoiding action.

46. Furthermore, it is arguable that where somebody inserts himself or his vessel into the path not only of one vessel but of three vessels and carries on regardless, we cannot ignore in this case that there were two vessels overtaking, or overhauling… the "GUDERMES", that that is the type of conduct which the drafters of the convention had in mind. It is not the possibility of some damage happening somewhere at some time to somebody but it is very close to being specifically polarised towards the very damage which did occur."

13. Having arrived at this conclusion it was unnecessary for the Registrar to consider any other arguments deployed by the First Defendants in seeking to "break" the Claimants' limit. I should add that on the material available to the Registrar his focus on the final minutes before the collision was understandable; first, because in the light of the Preliminary Act of the "SAINT JACQUES II", there would appear to have been a definite period in which collision with the specific ship the "GUDERMES" was increasingly likely; secondly, because there was in the evidence (from the First Defendants' solicitor) a passage carrying at least the suggestion that the First Claimant had been on the bridge at the time.

THE RIVAL CASES ON THE APPEAL

14. For the Claimants, Mr. Saunders advanced the following submissions:

(1) The matter could be analysed in two phases: First, the First Claimant's (admitted) recklessness in navigating across the Traffic Separation Scheme in breach of Rule 10 of the Collision Regulations ("Phase 1"). Secondly, the navigation of the "SAINT JACQUES II" in the final minutes before the collision ("Phase 2").

(2) Taking Phase 2 first, the Registrar had been wrong to assume that the First Claimant had been on the bridge. Properly analysed, there was no material justifying that assumption. In any event, the only evidence now before the Court in that regard was the Report (of the MAIB); the Report made it clear that the First Claimant was below, asleep at the time. In these circumstances, whatever the faults of the navigation of the "SAINT JACQUES II" in the final minutes before the collision, there was no material on which to base a conclusion of "personal act or omission" on the part of the Claimants in relation thereto. Absent such personal act or omission, the First Defendants had no real prospect of succeeding (on this point) at trial.

(3) As to Phase 1, namely the reckless navigation across the TSS, Mr. Saunders (for present purposes) admitted and averred the (alleged) practice of the "SAINT JACQUES II" of navigating in this fashion. Mr. Saunders underlined that the Court was not concerned with the merits or morals of such navigation. His argument was instead that as a matter of logic, the more times the First Claimant had navigated in this way, the less there was any or any real prospect of inferring that he had actual knowledge when he set the course on the 23^rd April, 2001 that a collision with the "GUDERMES" or some other vessel would probably result. He had "got away with it" in the past, relying on the "system" of being called by the watchkeeping crew if they were in any doubt.

(4) It could and should not be assumed that the Claimants would call any witnesses at any trial. As to inferences which could permissibly be drawn, these were limited; the Convention placed the burden of proof squarely on the First Defendants seeking to "break" the limit.

(5) Overall, it was to be remembered that in every case of limitation, it was to be assumed that there was a prior liability arising by reason of the fault of the party seeking to limit. The Convention deliberately imposed a heavy burden on a party challenging another's right to limit. The Court should not be led astray by suggestions of "hard cases". Justice in this area was best achieved by the consistent application of known rules.

(6) The Registrar's decision was wrong and could not stand; the Claimants were entitled to summary judgment.

I shall in due course have to consider whether Mr. Saunders' submissions were well-founded; I pause here to remark that they gained in force because of their frankness and realism in disclaiming any reliance on "merits and morals".

15. For the First Defendants, Mrs. Blackburn QC (relying in part on a Respondents' Notice) submitted quite simply that this was an exceptional case which should go to trial. The First Defendants had a real prospect of success on both "phases" (as I have termed them) of the matter. In any event, given that this was, Mrs. Blackburn said, the first collision case in this country where limitation was capable of seriously being challenged, there was a "compelling reason" within CPR Part 24 for the case to go to trial. If the First Claimant came to give evidence, he would be cross-examined; there was a real prospect that the outcome of that cross-examination would be such that the First Defendants would succeed. If the Claimants called no evidence, the Court would be entitled to draw permissible inferences such that the First Defendants would again stand a real prospect of success; in this regard, Mrs. Blackburn helpfully referred to the Australian decision SS Pharmaceutical v Qantas [1991] 1 Lloyd's Rep. 288 (to which I shall return). Finally, Mrs. Blackburn submitted that a decision to strike out the First Defendants' defence or that the Claimants were entitled to summary judgment would be a breach of the Human Rights Act 1998, as such an order would deprive the First Defendants of their right to a fair hearing under Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedom ("the Convention on Human Rights"); on the facts of this case, such a decision would render the (Limitation) Convention meaningless and effectively involved conferring an immunity on shipowners in collision cases.

THE LAW ON LIMITATION UNDER THE CONVENTION

16. For present purposes, the legal framework may be summarised as follows:

(1) For reasons of policy, the right of shipowners and certain others to limit their liability is long-established in English Law and is now (as already remarked) contained in the Convention. Three features stand out when the Convention is compared with its predecessor Convention, the International Convention relating to the Limitation of the Liability of Owners of Seagoing Ships ("the 1957 Convention"); the Convention provides: (i) for a higher limit of liability; (ii) that the burden of proof now rests on the party seeking to "break" the limit; (iii) that that burden is (intentionally) a very heavy burden. Sheen,J.'s observations in The Bowbelle [1990] 1 WLR 1330, that the Convention conferred on the shipowner an "almost indisputable right to limit", were cited with approval in The "MSC Rosa M" [2000] 2 Lloyd's Rep. 399, esp. at paras. 11 and following and in The "Leerort" [2001] EWCA Civ.1055; [2001] 2 Lloyd's Rep 291, esp. at paras. 9 and following.

(2) A glance at Art. 4 of the Convention suffices to indicate just how heavy is the burden resting on the party challenging the shipowner's right to limit. As David Steel,J. expressed it in The "MSC Rosa M" (supra), at para. 14: " … absent, as in the present case, any allegation of intent, the person challenging the right to limit must establish both reckless conduct and knowledge that the relevant loss would probably result."

(3) The nature of these two requirements (recklessness and knowledge) and the relationship between them appear from two authorities on the Warsaw Convention (as amended) governing the carriage of goods and persons by air ("the Warsaw Convention"). As to conduct being reckless, Eveleigh, LJ, said this, in Goldman v Thai Airways Ltd. [1983] 1 WLR 1186, at p. 1194:

" When conduct is stigmatised as reckless, it is because it engenders the risk of undesirable consequences. When a person acts recklessly, he acts in a manner which indicates a decision to run the risk or a mental attitude of indifference to its existence. That is the ordinary meaning of the word … One cannot therefore decide whether or not an act or omission is done recklessly without considering the nature of the risk involved…"

In Nugent v Goss Aviation [2000] 2 Lloyd's Rep. 222 (CA), Auld, LJ spoke (at p.227) of recklessness as involving:

" …. an obvious risk of damage and failure to give any thought to the possibility of it or recognition of the risk and going on to take it…"

It is plain that "knowledge" here means actual not constructive knowledge. Again, in Nugent, Auld, LJ said (at p.229):

" … the additional ingredient is actual knowledge, in the sense of appreciation or awareness at the time of the conduct in question, that it will probably result in the type of damage caused. Nothing less will do."

Plainly, the two requirements of recklessness and knowledge are separate and cumulative; a challenge to the right to limit will fail if (for instance) only recklessness but not knowledge is established. However and still further in Nugent, Auld, LJ said this (at p.227):

" … Adding a further ingredient … of knowledge of the probability of damage may or may not, depending on the obviousness of the risk, add much to the task of inferring that a carrier recognised the risk and went on to take it. The greater the obviousness of the risk the more likely the tribunal is to infer recklessness and that the defendant, in so doing, knew that he would probably cause damage. As a matter of proof the two will often stand or fall together … As so often, practical considerations of what a tribunal is prepared to infer as to a defendant's state of mind may be more determinative than fine matters of principle of what one legal concept adds to another…."

(4) Valuable as are these authorities on the Warsaw Convention as to the meaning of "recklessly" and "knowledge" in the present context, matters do not end with them. The test under the Convention for defeating the right to limit is still higher than that found in the Warsaw Convention, in respect of both the act or omission in question and the relevant knowledge; so: (i) under the Convention, the act or omission in question must be the "personal" act or omission of the party seeking to limit; by contrast, the exception to the right to limit contained in the Warsaw Convention applies to the act or omission of "the carrier his servants or agents" (art. 25 thereof); (ii) under the Warsaw Convention, the relevant knowledge is that "damage would probably result" (art. 25); under the Convention, the relevant knowledge under Art. 4 is that "such loss" would probably result.

(5) These considerations were addressed by Lord Phillips, MR, in The Leerort (supra), as follows:

" 13. The limitation provisions in relation to merchant shipping provide even greater protection than those in relation to carriage by air. It is only the personal act or omission of a shipowner which defeats the right to limit. A shipowner is defined in art. 1 as the owner, charterer, manager or operator of a seagoing ship. Thus, to defeat the right to limit, it is necessary to identify the causative act or omission on the part of such a person that caused the loss. Furthermore, it is only conduct committed with intent to cause such loss, or recklessly with knowledge that such loss would probably result, that defeats the right to limit. It seems to me that this requires foresight of the very loss that actually occurs, not merely of the type of loss that occurs. That certainly appears to have been the conclusion of Mr. Justice Steel in The "MSC Rosa M" ….

14. Mr. Teare submitted that the words "such loss" meant loss of the type suffered and that, to identify the type of loss, it was necessary to refer back to art. 2, which sets out the various types of loss in respect of which a right to limit arises. Thus, in the instant case, the claims advanced are in respect of "loss or damage to property", so that the only foresight required to defeat the right to limit was of the likelihood of loss of or damage to property.

15. This submission runs counter to the clear meaning of the wording of art. 4. The words "such loss" in that article clearly refer back to the loss that has actually resulted and which is the subject matter of the claim in which the right to limit is asserted.

16. It seems to me that where the loss in respect of which a claim is made resulted from a collision between ship A and ship B, the owners of ship A, or cargo in ship A, will only defeat the right to limit liability on the owner of ship B if they can prove that the owner of ship B intended that it should collide with ship A, or acted recklessly with the knowledge that it was likely to do so.

17. The alternative, which is perhaps arguable, is that the claimant merely has to prove that the owner of ship B intended that his ship should collide with another ship, or acted recklessly with the knowledge that it was likely to do so.

18. On the facts of this case it is not necessary to decide which alternative is correct. In either event the reality is that when damage results from a collision the shipowner will only lose his right to limit if it can be proved that he deliberately or recklessly acted in a way which he knew was likely to result in the loss of or damage to the property of another in circumstances where, inevitably, the same consequences would be likely to flow to his own vessel. Maritime history has many instances of scuttling, but I am not aware of one involving deliberate collision with another vessel. Mr. Teare has been unable to point to any collision case in any jurisdiction where the right to limit under the 1976 Convention has been successfully challenged.

19. These considerations demonstrate that when a claim is made for damage resulting from a collision, it is virtually axiomatic that the defendant shipowner will be entitled to limit his liability…."

These paragraphs from The "Leerort" prompted considerable discussion at the hearing; it is unnecessary to recount the detail and sufficient to draw together the conclusions as follows. First, whether or not these observations or some them are, as Mrs. Blackburn urged, strictly obiter, I respectfully regard them as both authoritative and persuasive and I shall follow them. Secondly, I record that Mrs. Blackburn reserved her position as to the correctness of Lord Phillips MR's conclusion in para. 15. Thirdly, importantly and (in my judgment) correctly, Mr. Saunders accepted that, for the matter to go to trial, it was sufficient for the First Defendants to have a real prospect of showing that the knowledge of the Claimants (or one of them) was within either para. 16 or para. 17. Fourthly, I note and will keep in mind as a matter of background that, by way of contrast with the concluding observations in para. 18, Mrs. Blackburn was in a position to point to a successful challenge to the right to limit in a collision case in France.

(6) Finally, I accept Mr. Saunders' submissions, already noted: (i) that in every case of limitation it was to be assumed that there was a prior liability arising by reason of the fault of the party seeking to limit; (ii) it was therefore of particular importance to keep in mind that "hard cases make bad law".

17. Turning to procedure, when, as in cases such as The "MSC Rosa M" (supra) and The "Leerort" (supra), there can be no realistic prospect of defeating the shipowner's right to limit, summary disposal of the limitation claim is readily understandable. The use of CPR Part 24 in such cases permits speedy effect to be given to the Convention and saves all parties the time and costs involved in a futile trial. That said, favourable as the present context may be to summary disposals, here, as elsewhere, summary judgment is for plain cases and there is no substitute for a consideration of each case on its facts.

DISCUSSION

18. Thus guided, I return to a consideration of the present case. Having regard to the scheme of the Convention and the authorities to which reference has already been made, it is plain that the First Defendants need to surmount a formidable hurdle to succeed in resisting summary judgment, quite apart from succeeding at any trial. In practical terms, in the collision context, for the reasons given by Sheen,J., David Steel,J. and Lord Phillips MR (all as cited above), it is likely that only truly exceptional cases will give rise to any real prospect of defeating an owner's right to limit. The question therefore remains, whether, notwithstanding this altogether unpromising background, this is an exceptional case which should go to trial.
19. In my judgment, this is such an exceptional case and it should go to trial. I agree with and uphold the decision of the Registrar, although, in the light of the (MAIB) Report available to me but not to him, I have reached my conclusion by a somewhat different route.
20. Phase 2: It is convenient to begin with Phase 2, namely, the navigation of the "SAINT JACQUES II" in the final minutes before collision. In the light of the (MAIB) Report, there is no evidence of the First Claimant being in the wheelhouse in those final minutes; to the contrary, the available evidence suggests that the First Claimant was asleep, below. If that be right, then the First Claimant had no personal involvement in the navigation during this period. Given the burden of proof resting on the First Defendants, had the case turned on Phase 2 alone, I would not have thought it right to refuse the Claimants' application for summary judgment; there would have been simply no evidential basis for an allegation of any "personal act or omission" within Art. 4; in this regard, I am unable to accept that the mere intention to cross-examine a witness should he attend at trial is sufficient to disclose a real prospect of success under Art. 4 of the Convention. It follows that through no fault of his, the Registrar's route to the conclusion that this case should go to trial, contained in paragraphs 44-46 of his judgment, cannot be sustained. For the avoidance of doubt, as this case will for other reasons go to trial, it will of course be open to the First Defendants to cross-examine the First Claimant on Phase 2, in the event that he should come to give evidence.
21. Phase 1: I turn to Phase 1, namely the reckless navigation of the "SAINT JACQUES II" across the TSS. The quite remarkable features of her navigation over this period and the First Claimant's involvement therein have already been referred to (paragraphs 10 and 11 above) but bear repetition: this was a repeated practice, in flagrant breach of the Collision Regulations, directed personally by the First Claimant for commercial reasons and, for present purposes, conceded to be reckless. In my judgment, it is these features which give the First Defendants a real prospect of defeating the Claimants' right to limit at trial. My reasons are these:

(1) As already underlined, recklessness is conceded for present purposes.

(2) Again as already discussed, establishing the relevant "knowledge" within Art. 4 is a separate requirement; that said, as Auld, LJ observed (in the passage from Nugent (supra), at p. 227 already cited) the two are not unconnected and depending on the obviousness of the risk the "two will often stand or fall together". For my part, this is such a case. The Claimants' concession, involves a realistic acceptance of the fact that the First Defendants have a real prospect of succeeding in establishing recklessness at trial; underlying this concession is the obviousness of the risk of collision. To my mind, on the facts of the appalling navigational practice here (admittedly) conducted under the personal direction of the First Claimant, coupled with the obviousness of the risk of collision, it would be permissible and open to the court at trial to infer that the First Claimant had, at the time in question, the relevant actual knowledge that a collision would probably result. It will be recollected that Mr. Saunders accepted (rightly in my judgment) that knowledge of the probability of a collision, whether with the "GUDERMES" or with some other vessel would suffice for Art. 4, at least for the purposes of CPR Part 24. Whether or not a Court would in fact come to such a conclusion as to the First Claimant's knowledge, seems to me to be classically a matter to be resolved at trial. This conclusion may well be sufficient to dispose of the present matter but I do not leave matters there.

(3) I have anxiously considered the argument advanced by Mr. Saunders, upon analysis central to his case on Phase 1,namely, that as the First Claimant had "got away with" such navigation in the past, there was, as a matter of logic, no or no real prospect of the inference at trial of actual knowledge of the probability of a collision. I am unable to accept this submission. First, as an objective matter, it is not apparent, at least to me, that the risk or probability of a collision declines with repeated reckless navigation. Intuitively, assuming comparable traffic and otherwise similar conditions, had it been necessary to do so, I would have inclined to the conclusion that the risk or probability of a collision would stay the same (because each incident was discrete) or possibly increase (because of the colloquialism of luck running out). Therefore, as a matter of objective analysis, I am not persuaded that the frequency with which the reckless practice was conducted points inescapably to something short of a probability of collision. Secondly, the test here is of course the subjective knowledge of the First Claimant, not an objective risk or logical analysis. As it seems to me, this again is a matter for evidence or inference at the trial. At this stage, it simply cannot be assumed of a man sufficiently reckless to navigate in the manner described that he could not have done so with knowledge that a collision would probably result; a sensible, prudent mariner is unlikely to have navigated as the First Claimant did in the first place; questions as to the First Claimant's actual knowledge and what, if any, reliance the First Claimant actually placed on his so-called system of calls from watchkeeping personnel, are pre-eminently matters of evidence or inference for the trial Judge. Accordingly, I am satisfied that the First Defendants have a real prospect of demonstrating at trial that what was involved here was the taking of a "stupid risk" or a "reckless manouevre… by a non-suicidal" mariner sufficient to bring the matter within Art. 4 (see Nugent, supra, at pp. 229 and 233).

(4) I turn to Mr. Saunders' submission that (i) it cannot be assumed that the First Claimant will attend to give evidence at trial and (ii) inference cannot permissibly be used to reverse the burden of proof resting on the First Defendants. It could not therefore be assumed that the First Defendants' case could improve at trial; for this reason as well, the Claimants application for summary judgment should succeed. I cannot agree. First, it would be odd if a tactical decision of one party (as to whether to call the First Claimant to give evidence) could prove decisive. Secondly, as it seems to me, Mr. Saunders' submission would only have force if the position had been reached where the First Defendants could not succeed at trial unless the First Claimant came to give evidence and it was assumed that he was successfully cross-examined; in that situation it could properly be said that the First Defendants' hope of a successful cross-examination is not a sufficient foundation for the assertion of a reasonable prospect of success, at least given the burden of proof resting on the First Defendants; but, for reasons already given, although that would have been the position with regard to Phase 2 had it stood alone, the position as to Phase 1 is very different. Thirdly, should the First Claimant attend to give evidence and face cross-examination, I am satisfied that there is at least a real prospect of "knowledge" within Art. 4 of the Convention being established. Fourthly, if, on the other hand, the First Claimant should not attend to give evidence, then, on the facts in any event before the Court, there is a real prospect of inference being properly deployed to assist the First Defendants in satisfying rather than reversing the burden of proof. The facts of Qantas (supra), a decision of the Australia Court of Appeal on the Warsaw Convention, are very different but the observations of Gleeson, CJ and Handley, J.A. remain nonetheless pertinent:

" The question for this Court, is whether the proved facts, the admission of "deplorably bad handling" and the failure of the defendant to call evidence enabled the requisite inferences to be drawn which brought the case within art. 25. These were that the damage was the result of reckless acts or omissions with knowledge that damage would probably result, rather than either recklessness without such knowledge or mere gross negligence.

Where the inference of greater fault is open on the evidence we see no difficulty in drawing that more adverse inference where the defendant fails to call evidence. As Mr. Justice Rich .. said in Insurance Commissioner v Joyce… where an inference is open and the defendant elects not to give evidence "the Court is entitled to be bold"."

22. It follows that, in my judgment, on an analysis of the facts before the Court, this matter should go to trial and the Claimants' appeal must be dismissed. There is a real prospect of the First Defendants succeeding at trial in defeating the Claimants' right to limit; beyond that I need not and do not go.
23. For completeness, I must mention two further submissions advanced by Mrs. Blackburn as to why this matter should go to trial: (1) as this was the first collision case in this country in which the right to limit was capable of being "seriously" challenged, that was a "compelling reason" within CPR Part 24 for a trial; (2) a decision against the First Defendants would give rise to a breach of the Human Rights Act 1998, in that an order for summary judgment or a strike-out would deprive the First Defendants of their right to a fair hearing under Art. 6 of the Convention on Human Rights. Given the conclusion to which I have already come, the matter is academic; it is therefore only necessary to say little more than that I would have been unable to accept these submissions. Submission (1) suffered, if I may say so, from "bootstraps" reasoning. Submission (2) was, with respect, misplaced. A summary decision adverse to the First Defendants on the available facts, against the background of the right to limit contained in the Convention and the heavy burden of proof resting on a party seeking to defeat that right, would not have offended against the Convention on Human Rights: see Z v United Kingdom (Application No 29392/95, judgment 10.5.2001). Insofar as the contrary was suggested, observations in the authorities, such as the "virtually axiomatic" right of the defendant shipowner to limit his liability in a collision case, do not confer a blanket or any immunity on shipowners in collision cases, inconsistent with Art. 6 of the Convention on Human Rights. Instead, these observations properly reflect the heavy burden facing those seeking to challenge the right to limit under the Convention and the practical commonsense that in collision cases such challenges will only very rarely stand a real prospect of success. In the event, for the reasons already given, this is one of those rare cases.